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- This blog was kindly authored for HEPI by Professor James Tooley, Vice Chancellor at the University of Buckingham. He writes here in a personal capacity.
In Cry Freedom, published last week by University of Buckingham Press, I presented an argument against what I consider to be the recent regulatory assault on the institutional autonomy of English universities – something that in theory the Higher Education and Research Act (HERA) 2017 was intended to protect, even as it paved the way for the establishment of the Office for Students. In that short book, I did not tackle the potential impact on the argument of the Higher Education (Freedom of Speech) Act of 2023. This brief Addendum sets out to do precisely that.
First, let me summarise briefly the major points of Cry Freedom. I use the terms “universities” and HEIs/providers interchangeably.
10-point summary
1) All universities in England are ostensibly independent – there are no public universities. Yet research has suggested that this independence (or ‘institutional autonomy’) is a major reason behind the global success of the universities of England.
2) Protection of the institutional autonomy of England’s universities was therefore of paramount concern during HERA 2017’s passage through Parliament. Pressure from the Lords led to the Act containing “robust and meaningful” protections of institutional autonomy.
3) The Office for Students (OfS) was created by the Act as the university regulator. There are 25 “general ongoing conditions of registration” and two categories of provider – “approved (fee cap)” and “approved”. Universities in the first category have to satisfy 24 of those 25 conditions. Even though one reason for regulation is to provide value for money for taxpayers, universities in the second category – typically not in receipt of any direct government funding (and including the proudly “independent” University of Buckingham) – still have to satisfy 22 of the conditions.
4) HERA 2017 defines institutional autonomy (what we might also call institutional freedom) as encompassing seven freedoms:
- the freedom for universities to conduct their own day-to-day management;
- the freedom to determine their own course content;
- the freedom to determine how their courses “are taught, supervised and assessed”;
- the freedom to determine and apply their own criteria for employment of academic staff;
- the freedom to determine and apply their own criteria for admission of students;
- academic freedom; and
- freedom of speech.
5) HERA 2017 gives the OfS general duties that it “must have regard to”. Seven are of particular interest, including the need to:
- protect the institutional autonomy of higher education providers;
- promote quality in higher education;
- promote greater choice and opportunities for students;
- encourage competition between higher education providers;
- promote value for money;
- promote equality of opportunity; and
- follow regulatory best practice.
6) The OfS claims that no single one of these “must have regard to” duties is more important than any other, and it can decide which it prioritises under what circumstances. However, it appears never to prioritise institutional autonomy.
7) However, in HERA 2017 the protection of institutional autonomy, was in fact singled out as more important than the other duties. For instance, the Secretary of State, in giving guidance to the OfS, is forbidden from giving advice on issues which relate to many of the freedoms comprising institutional autonomy, as listed above. Furthermore, when it comes to access and participation plans – the government’s key driver for promoting equality of opportunity – the OfS is given a direct “duty to protect” institutional autonomy, rather than being told merely to ‘have regard to’ such protection.
8) It appears that these stipulations about institutional autonomy have been ignored. Cry Freedom gives examples showing how guidance from the Secretary of State impinges on institutional autonomy. Examples too show how the B conditions on quality and the A conditions on equality of opportunity continually override institutional autonomy, even though it is not allowed in the case of equality of opportunity and must be justified in the case of quality. The F conditions, on transparency, show further regulatory overreach – at least one of these conditions was clearly not intended by HERA to apply both to “approved” and to “approved (fee-cap)” universities, but nonetheless this is what has happened.
9) What is to be done? Cry Freedom argues that the OfS and Secretary of State need to stop thinking of universities as being government bodies and begin to respect their institutional autonomy. Universities not in direct receipt of government funding should not be regulated so heavily. The Teaching Excellence Framework (TEF) should be made optional, and the ‘Requires improvement’ category abolished. Access and Participation Plans need to be replaced by something less intrusive.
10) If we do not counter the overreach of the OfS now, disaster lies ahead for English universities. It is time we stood up and defended our freedoms.
The Impact of the Higher Education (Freedom of Speech) Act 2023
How have the provisions of the Higher Education (Freedom of Speech) Act 2023 and the draft regulations impacted on the conclusions of Cry Freedom? (Throughout this discussion we need to be clear that the provisions of the Act have not yet come into force). The Higher Education (Freedom of Speech) Act 2023 – HE(FS) 2023 as I shall call it – is an amending Act, inserting new, and adapting old, sections of HERA 2017. This makes it rather difficult to follow precisely what has changed. The salient features seem to be as follows:
Point 4 of the 10-point summary above refers to the freedoms making up Institutional Autonomy. Academic Freedom and Freedom of Speech now become separate freedoms in their own right. “Institutional Autonomy” by definition now consists of five, still very important, freedoms.
Point 5 referred to the ‘general duties’ of the OfS to which it “must have regard”. The protection of Academic Freedom and the promotion of Freedom of Speech are now included by HE(FS) 2023 as additional general duties to which the OfS “must have regard”.
Point 6 noted the stated position of the OfS that none of their “have regard to” general duties is more important than any other. This still appears to be the OfS’s position – which means the need to protect Institutional Autonomy is now jostling with two additional “have regard to” general duties.
However, Point 7 disputed the OfS’s position, suggesting that Institutional Autonomy was in some clear respects more important than the other “have regard to” general duties, giving two examples, which still appear valid. The first example concerned the Secretary of State’s guidance to the OfS. The only thing that has changed as a result of HE(FS) 2023 is that the Secretary of State must also take into account academic freedom as well as institutional autonomy when giving guidance.
Also in Point 7, concerning access and participation plans, if anything the importance of protecting Institutional Autonomy has been strengthened by the amendments of the 2023 Act. The relevant updated section of HERA 2017 (Section 36) is now entitled “Duty to protect institutional autonomy”, rather than as before “Duty to protect academic freedom”. The stronger protections that I noted in Cry Freedom still remain after HE(FS) 2023, i.e., the OfS is still given the duty of protecting institutional autonomy over and above any other duties.
However, complicating this picture, Sections A1 to A3 of the revised HERA will make it a duty of universities themselves to “take steps to secure freedom of speech”, and “to promote the importance of freedom of speech and academic freedom”. The OfS is given oversight functions, spread across several sections of the new 2023 Act. These include Section 10 on monitoring forthcoming conditions of registration and the enforcement mechanisms of the complaints scheme.
Thus the general argument of Cry Freedom remains broadly unchanged. Cry Freedom notes that the OfS appeared to be engaged in undermining institutional autonomy, and the new Act appears to legitimise that approach with regard to free speech. There still are tensions between the protection of institutional autonomy and the other “must have regard to” duties, such as the promotion of equality of opportunity and the promotion of quality, as well as the new academic freedom and free speech duties for universities themselves.
We don’t know how the apparent tension between the protection of institutional autonomy and academic freedom and free speech will play out in practice as we don’t yet have the OfS Conditions of Registration on these topics to examine. Consultation on these will likely begin in Autumn 2024, and the Conditions themselves are anticipated to come into force on 1 September 2025.
Draft Regulations on Freedom of Speech
What we do have, however, is over 70 pages of new documents to absorb – the draft guidance Regulatory Advice 24: Guidance related to freedom of speech and the associated Consultation on proposed regulatory advice and other matters relating to freedom of speech.
Reading these does not leave one with much confidence that Institutional Autonomy has been given any importance by the OfS. It is notable that the terms “institutional autonomy”, “autonomy” or “autonomous” are not mentioned anywhere at all in the new Guidance document. However, as the Guidance is still out for consultation, let’s leave Regulatory Advice 24 out of the picture for now.
Institutional autonomy is, however, mentioned in the Consultation document, and the manner of its treatment speaks volumes.
Annex D of the Consultation document is called “Matters to which we have had regard in developing our proposals”. Unlike the Guidance, this is not out for consultation, so it seems reasonable to offer a response to it here. It lists the OfS’s general duties, including the seven of interest in Point 5 above. In para. 3, it is conceded that “institutional autonomy” is, along with other general duties felt to be “particularly relevant” to the proposals currently out for consultation. However, in para. 4 the Annex notes that “significant weight” is being placed on institutional autonomy, because it is (currently) defined in a way that includes academic freedom/freedom of speech. That is, institutional autonomy is being foregrounded because it includes academic freedom/free speech, which, under HE(FS) 2023, they know will (soon) be removed from the definition of institutional autonomy!
Annex D Para. 6 then goes on to note other key aspects of Institutional Autonomy: “HERA also, currently, defines ‘institutional autonomy’ to include the freedom of English higher education providers to conduct their own management and to determine their own approach to teaching and their own criteria for admissions and appointments. In developing our proposals, we gave weight to this aspect of institutional autonomy. However, we have balanced the need to protect this aspect of institutional autonomy against the legal requirement to protect academic freedom for individual members of academic staff.” (Emphasis added).
That’s it. No further explanation required. They are obliged to give weight to institutional autonomy, and they say they have done so, but rather than consider and remedy the ways in which their own ongoing Conditions of Registration clearly impinge upon universities’ freedoms in these areas, the OfS is now setting the legal freedom of academics employed at universities as a counterweight and potential inhibitor of such freedoms. To suggest that this will “help providers and others to navigate their free speech duties” and in the same breath remind them that “it does not remove the requirement for them to make their own judgements about compliance with those duties” and that this “transparency” will make it easier for the OfS to take “decisions” about compliance/non-compliance, is typical of this regulator’s confusing and heavy-handed approach (Consultation document, para. 44, p. 18).
Incidentally, this is not the case with other “must have regard to” duties; here the Consultation document at least makes a modicum of effort to try to show why academic freedom and freedom of speech are more important than the other duties the OfS must take into account. For instance, Annex D para. 7 says that “The OfS must have regard to the need to promote quality …. in the provision of higher education by English higher education providers (general duty (b)). We consider that students will not have a high quality education if that education is not grounded in freedom of speech.” A further paragraph gives more details. Para. 8 provides a similar length discussion as to why free speech takes priority over equality of opportunity.
Agree or disagree with these formulations, the OfS has at least tried to show why freedom of speech takes priority. No such attempt is made for institutional autonomy.
Finally, we can note that the OfS provides a section on Guidance issued by the Secretary of State. Annex D Para. 30 reads: “We have a duty to have regard to statutory guidance issued by the Secretary of State under section 2(3) of HERA. Guidance issued in March 2022 set out the government’s view that it is essential for the higher education sector to uphold freedom of speech and for the OfS to regulate in relation to free speech matters.”
Not surprisingly, OfS agreed with this guidance. But it’s interesting that they only cite Section 2(3) of HERA, when Section 2(4) says that, in giving this guidance, the Secretary of State “must have regard to the need to protect the institutional autonomy of English higher education providers”. In particular, the guidance given must not trespass upon aspects of institutional autonomy as defined in Section 2(8) and listed in Section 2(5).
It would appear that in March 2022 the Secretary of State had no business in giving guidance to the OfS which would have clearly have the impact of undermining institutional autonomy.
Conclusion
Let me be quite clear: I am very much in favour of quality and equality of opportunity, and of academic freedom and freedom of speech. But I am also very much in favour of protecting the constitutional independence and institutional autonomy of universities, particularly those that don’t receive any direct government funding. So as a result I am very much against a regulator that continually sets at nought, or into conflict with other obligations, a university’s chartered right to manage its day to day affairs, admit the students it wants to, employ the teaching staff it believes best suited to teach them, and develop its own curricula, against a backdrop of threats and sanctions for ‘breaching the conditions’ of its registration.
This is true whether it concerns the A conditions on equality of opportunity, the B conditions on quality, or the recent Regulatory Advice that unhappily seems to be foreshadowing a parallel approach for Academic Freedom and Free Speech too.
Let us hope that future Governments take note.